McNeill, Peter G. B. (1960) The jurisdiction of the Scottish Privy Council, 1532-1708. PhD thesis. http://theses.gla.ac.uk/3029/ Copyright and moral rights for this thesis are retained by the Author A copy can be downloaded for personal non-commercial research or study, without prior permission or charge This thesis cannot be reproduced or quoted extensively from without first obtaining permission in writing from the Author The content must not be changed in any way or sold commercially in any format or medium without the formal permission of the Author When referring to this work, full bibliographic details including the author, title, awarding institution and date of the thesis must be given Glasgow Theses Service http://theses.gla.ac.uk/ [email protected] THESIS presented for the degree of Doctor of Philosophy in the University of Glasgow 1960 THE JU1ISDICTION OF THE SCOTTISH PRIVY COUNCIL 1532 - 1708 submitted by Peter GB McNeill MA LIB Advocate 1ý, Edinburgh: 1960 BEST COPY AVAILABLE Variable print quality BEST COPY AVAILABLE TEXT IN ORIGINAL IS CLOSETO THE EDGE OF THE PAGE THE JURISDICTION OF THE SCOTTISH PRIVY COUNCIL 1532 - 1708 To MFM Acknowledgements My thanks are due to the librarians and staff of National Library of Scotland, Advocates Library., Signet Library, the Historical Department of IHY.Register House and the Library of Edinburgh University, and in particular to Dr hcIrmes, Dr Malcolm and Mr Brashaw for their kind assistance and advice. I also received much encouragement and guidance from Mr G. Campbell H. Paton, Advocate. My thanks are also due to biss M. Deas and Miss R. Hope for typing the work. CONTENTS List of Abbreviations j,. PREFACE -jai I fl TRODUCTION I 1. The Problem I II THE COUITCII, AS ACOURT 3 2. The Organization of the Court 3 Dritten constitutions 5 Vacation 6 Meetings: day, time, place 6 Councillors: qualification 9 Appointment 10 Tenure 11 Remuneration 11 Immunities 12 Representation of parties 12 Clerk of Council 14 Signets 15 Macer 16 Records 17 Registration 18 3o Functioning of the Court 19 Composition 19 Ordinary councillors 19 Extraordinary councillors 21 An undivided court 23 Quorum 24 Declinature 25 Letters 25 SiCnatures 26 Warrants 27 Judicial decisions 27 Individual councillors as judges 28 Consolidation of council 28 V III JURISDICTION: GENERAL 30 4.. General 30 Territorial 30 Over persons 30 5. Tribunal of Conflicts 32 Church and state 33 Andrew Melville 34 General Assembly of 1605 35 6o Subject Matter 37 IV JUPISDIC L IO : ADL.MISTRATION 38 7. Civil Administration 33 Trade regulation 38 Administrative law 42 Disputes within the administration 42 Complaints against the administration 43 Burghs 45 8o Administration of Justice 1+7 Commissions 49 Interference 50 Precognition 51 Super inquirendis 52 Supervision 53 Petition and direction 53 Assistance to inferior courts 52+ Redress 51+ Disciplining judges 55- Partial Assize 56 Exemption 57 Jurisdictional disputes: competencsy 58 Church courts 60 Patronage 62 Conflicting jurisdictions 63 Court of session 65 9. Appeals 66 No appeals on merits 66 Suspension 66 Reduction 67 Advocation 67 vi 68 V JURISDICTION: EQUITY 10. Privileged Causes 70 King's causes 70 Revenue 71 Churchmen 72 Women and children 73 Sequestration of pupils 73 Other matters 76 Insanity 77 Consistorial matters 78 Aliment 79 81 Poor persons Kindly tenants 83 Strangers 85 Conflict of laws 89 Nationality 91 11. Eui 92 Nobile of ficium 92 Interponing authority 92 Approbation 93 Approval of schemes 94 Patents 97 Acts of Grace 99 12, Prerogative of Mercy 100 Suspension 100 Supersedere 102 Liberation 103 Civil imprisonment 103 Criminal imprisonment 106 VI JURISDICTION: PE.&CE 109 13, h1aintenance of Peace 109 Feud 109 Lawburrows 110 14.. Civil and Criminal. Liability 112 Personal liability 112 Vicarious liability: general band 112 Other liabilities 113 vii 15, Riot and Oppression: criminal aspect 115 Hagbuts and pistols 116 Defences 118 Remit to the ordinary 119 Puni shrient 121 16, Civil Aspects of Riot Reparation: damages for personal injuries 123 Slaughter: assythment: remission 121 Defamation 125 Abuse of process 126 17, Wrongs to Property 127 Heritage 127 Teinds 129 Movables 130 Remit to the ordinary 131 18. Liability Ex delicto Delict 133 Negligence 133 Damnom sine iniuria 135 Damages 135 Fines 136 19. Res iudicata 138 Decree in absence 138 Both parties present 139 Effect of decree 139 20. Horning 141 Criminal and civil horning 11+1 Horning in the council 112 Effect of rebellion 143 21. Can 1! 4 Contempt of the king's authority 144 Execution 145 The Guard 145 Tolbooths 146 Private pursuers 147 Public interest 147 Cessation of captions 11F8 viii 22, Escheat 149 Regranting of escheats 11+9 Incidental disputes 150 Remit 151 Punishment 152 VII PROCEDURE 151 230 Supplication 154 24, Process 157 Letters 157 Citation 158 Pererrptory diets 159 Process 160 Consent 161 25. Probation 162 Writ 162 Oath: oath of calumny 162 Oath of verity 163 Oath de iuramento 163 Witnesses 164 Probation in absence 165 26. Quality of Proof 166 27. Expenses and Fees 167 Expenses 167 Fees 170 VIII DEMISE OF THE COUNCIL 171 Act of 1707 and after 171 Riots 172 Equity and administrative law 172 IX CONCLUSION 176 APPENDICES A Constitutional documents of the privy council, 1532-1707 178 B Commission of the privy council, 1626 179 C Privy Council in 17 century 183 Comparison D between the privy council and court of session: organization and function 185 ix E Comparison between privy council and court of session: membership, March 1625 187 F Acts and decrees 189 Cr Master of requests 191 H Petition and direction 192 I Interference with court of session by privy council 195 J Petitions for powers 197 K Church lands after 1560 202 L Form of supplication before the council, 1606 206 M Analysis of bills, July 1607 207 N Forms of deliverance of supplications 209 0 Steps in process, 1686 210 P Public and private prosecution 212 Q The last years of the council 213 BIBLIOGRAIIY LIST OF ABBREVIATIONS ADC Acta Dominorun Concilii (Publi. ADC c) Acts of Lords of Council in Public Affairs AJ Act of Adjournal AM Acts of Parliament of Scotland AS Act of Sederunt Balfour Balfour, Sir James, Practicks Bisset Bisset, Habbakuk, Rolement of Courtis BOBO Book of Old Edinburgh Club Botfield Original Letters, Ed. Botfield Breviate Sibbald, A Breviate of the State of Scotland Brunton Brunton & Haig, Senators of the College of Justice BS Books of Sederunt BUK Book of Universall Kirk Calderwood Calderwood, History of the Kirk in Scotland EHR Enali sh Historical Review ER Exchequer Rolls Erskine Erskine, Institute of the Laws of Scotland Hannay Hannay, College of Justice HMJ Historical Manuscripts Coaanission Home MSS David Milne Home Manuscripts Hope Sir Thomas Hope, Major Practicks Hume Crimes Hume, Commentaries respecting Crimes JR Juridical Review Keith Keith, Affairs of Church and State in Scotland Knox Knox, Works Letters Letters and State Papers of Janes VI xi Mackenzie Mackenzie, Laws and Customs of Scotland in Matters Criminal Criminal Mackenzie Mackenzie, Institutions of the Law of ScotlFmd Institutions McMillan McMillan, Evolution of Scottish Judiciary Mar & Kellie Mar & Kellie Papers Melrose Papers Melrose Papers, Abbotsford Club NIS National Library of Scotland CID Oxford English Dictionary Pitcairn Criminal Trials, Ed. Pitcairn Pitm Pitmedden, Abridtrnent of Books of Sederunt Re iem Regiam Majestatem Register Register of Royal Letters RH H. M. General Register House, Edinburgh RMS Register of Great Seal RPC Register of Privy Council, First Series 2RPC Register of Privy Council, Second Series 3IPC Register of Privy Council, Third Series RSS Register of Secret Seal TA Treasurers Accounts SHR Scottish Historical Review gHS Scottish History Society Skene De Verb Skene, De Verborum Significatione SIjr Scots Law Times Spotswood Spotswood, History of the Church of Scotland Staggering State Scot, Staggering, State of Scottish Statesmen Stair Stair,, Institutions STS Scottish Text Society Sources Sources and Literature of Scots Law PREFACE The main source of this thesis is the Register of the Privy Council, the greater part of which has been in print for almost seventy years during which time it has been the quarry of historians whose interests were primarily 1 political and ecclesiastical. Such legal work as has been done on the council has been largely of a constitutional nature; and the legal interest of non- historians and antiquaries has had a bias towards trials for witchcraft and the persecution of the covenanters - topics which are not of great importance in themselves nor when compared with the huge mass of judicial business which the council transacted; and these topics tend to give a distorted picture of the volume and proportion of that business. The article in Sources and Literature of (Stair Scots Law Society), at page 82, is merely a starting point which, apart from reliance on Mackenzie, only touches on the original jurisdiction of the council before the Restoration. The much shorter paragraph in Introduction to 2 Scottish Legal History, at page 28, is misleading. The Edinburgh University PhD thesis of Mr William Taylor, "The Scottish Privy Council 1603-1625: Its Composition and Work", is chiefly concerned with politics and administration. Apart from the Register, I have relied mostly on the Acts of Parliaments of Scotland,, on the institutional and other writers,, particularly Mackenzie., and on the various collections of royal and other letters which are preserved in the club books. Since the bulk of the sources used are in print the MIS sources have 1. The lack of legal interest is betrayed even in some of the earlier editors of the Register who use "plaintiff" and "defendant" instead of "pursuer" and "defender": RPC iii 443 2. Appendix I xiii been used mainly to supplement them and in the case of the Register to recover information which had been obscured in the process of calendaring.